Utah stands alone — so far, at least — in its bid to take public lands from the federal government, after Arizona Gov. Jan Brewer vetoed similar legislation and other states have yet to join the fight.
"Obviously, it’s disappointing," said Rep. Ken Ivory, R-West Jordan. "We have work to do with the [Arizona] governor so, between now and the next legislative session, she and both houses of the Legislature are on board."
From Arizona Gov. Jan Brewer veto message
» “As a staunch advocate for state sovereignty, we still must be mindful and respectful of our federal system. The legislation appears to be in conflict or not reconcilable with U.S. Constitution Article IV, Section 3, Clause 2 and Article VI, Clause 2, as well as the Enabling Act.”
» “I also am concerned about the lack of certainty this legislation could create for individuals holding existing leases on federal lands. Given the difficult economic times, I do not believe this is the time to add to that uncertainty.”
» “Despite the claim that this bill has no fiscal impact, I believe there is a significant and unaccounted for fiscal impact associated with this legislation. … If Arizona received the 23 million acres of federal lands contemplated by this legislation, the Arizona State Land Department would need approximately $23 million in additional dollars and an untold increase in staff and resources.”
» “I understand and share Arizona’s frustration in trying to manage our natural resources with our various partners; however, this legislation is not the answer.”
The Arizona governor, who has a reputation for being something of a conservative firebrand, vetoed the bill Monday, citing a host of concerns with the legislation.
In her letter to legislative leaders, Brewer wrote that the legislation appeared to be "not reconcilable" with the U.S. Constitution and Arizona’s Enabling Act and that it would create uncertainty for holders of leases on federal lands.
Brewer also said that, if Congress were to transfer control of the land to the state, Arizona would be on the hook for up to $23 million in costs to manage the land, and that it is premature to put fixed dates for action into statute until the state has met its other funding needs.
"As a staunch advocate for state sovereignty, we still must be mindful and respectful of our federal system," Brewer wrote. "I understand and share Arizona’s frustration in trying to manage our natural resources with our various partners; however, this legislation is not the answer."
In short, Brewer relied on the same arguments that opponents of similar legislation in Utah raised when the bill demanding Congress turn over nearly 30 million acres of federal land passed the Legislature and was signed by Gov. Gary Herbert.
"I will not speculate about her motives. Arizona faces their own unique circumstances," Herbert said. "Bottom line: Utah put the federal government on notice — we simply want them to honor the commitment they made at the time of statehood. That commitment in our enabling legislation was to dispose of the public land."
Herbert said the goal is to optimize economic development and find the right balance of multiple use of the public lands.
The bill, philosophically, draws its inspiration from the Sagebrush Rebellion in the West in the late 1970s and a proposal that was put forward by the American Legislative Exchange Council, a business-backed legislative group, in the mid-1990s.
The failure in Arizona, along with a similar measure that failed to get out of a House committee in Colorado, is a setback to the vision Utah lawmakers had of cobbling together a Western coalition to press the issue and share the potential litigation costs.
"As many states as possible, that helps our cause," said Senate Majority Whip Wayne Neiderhauser, R-Sandy, the Senate sponsor of Utah’s bill. "But it’s a legal issue, not just a political support issue."
Ivory said it will take an education process around the West to make sure lawmakers and governors understand the issue. He said the bill is not unconstitutional.
"This is going to be a process. Nobody pretends otherwise, but we’re in a situation where we can’t take, ‘No’ for an answer," said Ivory, speaking from New Mexico, where he was working on promoting the legislation.
He said he had just come from Colorado, where he had similar meetings with lawmakers there, and then planned to head to Idaho to make the pitch to colleagues there.
Sen. Al Milken, the sponsor of the Arizona legislation, has already said that he plans to bring it back next year, Ivory said, and he expects Idaho, Wyoming and Montana to consider legislation and are among the most likely to pass it.
Last month, Idaho Gov. Butch Otter said that the state should demand that the federal government keep its promises, but questioned if the demands Utah is making would pass legal muster.
"You could pass all the legislation in Idaho you want, but if it’s not going to be recognized by the courts or Washington, D.C.," it could be futile, Otter said.
Steve Bloch, an attorney with the Southern Utah Wilderness Alliance, said it is a futile quest — one that Arizona’s governor saw through.
"We’re not surprised that Governor Brewer vetoed Arizona’s companion bill," he said. "The legislation, like Utah’s legislation, is ill-conceived and has no basis in law or fact. The state of Utah should focus its efforts on real solutions to funding schools — things like addressing severance tax — and leave these legal gambits behind."
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